CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 décembre 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .s76CF415B { page-break-before:always; clear:both } FIRST SECTION Application no. 29528/07 Daniela KUZMANOVSKA against the former Yugoslav Republic of Macedonia lodged on 16 June 2007   STATEMENT OF FACTS THE FACTS The applicant, Ms Daniela Kuzmanovska, is a Macedonian national who was born in 1979 and lives in Ohrid. She was represented before the Court by Mr G. Risteski, a lawyer practising in Skopje. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 3 September 2002 the applicant signed an employment contract (“the contract”) under which she was recruited as teacher in a primary school Lj.L. from Skopje (“the school”). The applicant submitted two versions of the contract (both bore a stamp indicating 13 September 2002 as the date of receipt by the Employment Bureau (“the Bureau”)). According to the first version, she was recruited for a temporary post between 1 September and 30   October 2002; and according to the second version, the contract was concluded on an indefinite duration. Both versions provided for apprenticeship ( приправнички стаж ) between 1 September 2002 and 31   August 2003. On the same date, the school requested that the Bureau register the applicant in its records of employees. According to the application, the applicant was recruited for a permanent post without a vacancy announcement being advertised. On 5 September 2002 the Ministry of Education and Science (“the Ministry”) communicated to the Ministry of Finance a document attesting that permission was given to the school for a permanent post of teacher. A letter attached thereto issued by the Ministry of Finance indicated that that permission concerned the applicant’s recruitment for a permanent post in the school. On 10 September 2002 the Minister of Finance informed the Ministry that there had been an appropriate budgetary provision for recruitment of one person in the school. On 28 October 2002 the school dismissed the applicant since the validity of the fixed-term contract had expired on 30 October 2002. The applicant objected to the dismissal decision. In reply to a letter seeking information, on 6 November 2011 the Bureau informed the school that the applicant, on the basis of the documents mentioned above, had been registered as a permanent employee. The Bureau dismissed accordingly the school’s request to remove her from the list of registered employees. On 8 November 2002 the school’s board dismissed the applicant’s objection and confirmed the dismissal decision. It held that the applicant had been employed on a fixed term in order to replace U.M. who had been on a sick-leave. That had been confirmed by the Employment Inspectorate on the occasion of the on-site examination dated 4 November 2002. It dismissed the applicant’s arguments that she had been employed on a permanent basis stating that for such employment a vacancy announcement should have been advertised, which had not been true in the applicant’s case. The applicant brought a civil action before the Skopje Court of First Instance (“the first-instance court”) challenging the dismissal decision. She claimed that she had been appointed for a permanent post in the school, as evident from the documents described above. She further argued that certain J.N. had been recruited to replace U.M. On 3 September 2003 the first-instance court, under section 289 of the Civil Proceedings Act (see “Relevant domestic law” below), concluded the trial ( ја заклучил расправата ). On 15 September 2003 it rendered a decision in which it dismissed the applicant’s action and confirmed the dismissal decision. The court established that the applicant had been recruited on a fixed-term. That was confirmed by the application that the school had submitted to the Bureau. The court further referred to on-site examinations carried out on 4 and 27 November 2002 by the Employment Inspectorate, according to which the applicant had been employed without vacancy announcement being advertised. It also relied on a document of 9   September 2003 in which the Ministry indicated that the applicant had been employed for a temporary post. This document was received by the court on 15 September 2003. In view of the fact that no vacancy announcement had been advertised, as required under section 9-a of the Employment Act and section 71 of the Primary Education Act, and on the basis of the document of 9 September 2003 (see above), the first-instance court concluded that the applicant had been recruited for a temporary post and her dismissal had been accordingly lawful. This decision was upheld by the Skopje Court of Appeal and the Supreme Court with decisions rendered on 28 January 2004 and 2 March 2005 respectively. These courts accepted the established facts and endorsed the reasoning given by the first-instance court. According to the Supreme Court, that the applicant had been appointed for a temporary post had been confirmed by the Ministry’s submissions of 9 September 2003 and the fact that no vacancy announcement had been advertised for the post. Both courts dismissed the applicant’s appeals, notwithstanding the explicit complaint therein that the impugned decision was based on the Ministry’s submissions of 9 September 2003, which had been admitted after the trial had been concluded and had never been communicated to her. The Supreme Court’s decision was served on the applicant on 18 December 2006. B.     Relevant domestic law 1. Civil Proceedings Act of 1997 Under section 289 of the Civil Proceedings Act, valid at the relevant time, an adjudicating panel could conclude the trial although further evidence remained yet to be obtained. Such decision could be taken if the parties waived the right to argue in respect to that evidence ( ќе се откажат од расправањето за тие докази ) or the panel considered such argumentation unnecessary. 2. Employment Act of 1997 (Official Gazette no.53/1997) Under section 9-a of the Employment Act, a vacancy announcement for posts in public institutions should be advertised in a daily newspaper. Exceptionally, there was no need for such advertisement in urgent cases concerning temporary posts of maximum 30 days. 3. Primary Education Act (consolidated version, Official Gazette no.52/2002) Under section 71 of the Primary Education Act, teachers were employed on the basis of an advertised vacancy announcement. They could be recruited without a vacancy announcement being advertised for temporary posts of maximum 3 months in a school year. COMPLAINTS The applicant complains under Article 6 of the Convention that the domestic courts erred on the facts and law. In particular, they ignored the documentary evidence that she had been appointed for a permanent post of teacher. Furthermore, the courts’ decisions were based on the Ministry’s submissions of 9 September 2003, which have never been communicated to her. QUESTIONS TO THE PARTIES   Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the proceedings before the first-instance court, namely was the applicant given the opportunity to have knowledge of and comment on the submissions of the Ministry of Education of 9 September 2003 admitted after the first-instance court had concluded the trial?